FTC Affirms Right to Repair is Right for Consumers

In a comprehensive rebuke of opposition arguments to Right to Repair, the Federal Trade Commission (FTC) found “scant” evidence that repair should be restricted. The FTC studied the evidence and found next to nothing, except a single report of a battery fire in 2011 in Australia. One cell phone fire among billions for a ten year period is indeed “Scant.”

Repair.org members were asked to testify—and we can all attest the thoroughness of the process. It is pure joy to see that our words were heard and that our arguments were persuasive. With 19 months of silence we’d no expectations of anything positive. 

The most exciting result of this report is the clear endorsement of state right to repair legislation as a suitable path forward. The path to passage in multiple states now appears wide open. 

The next few months will be very telling. OEM arguments against Right to Repair have been obliterated. If OEMS do not change their policies voluntarily, it appears the FTC is prepared to push forward using their existing authority. They may even engage in a formal rulemaking. At the same time, legislation that has been moving slowly in state legislatures has been invigorated. Had this report been available in January, several states with short sessions may have already passed “Right to Repair” laws by now.

The report runs 56 pages with extensive footnotes. Here is a brief summary: 

• Limitations on repair constitute illegal tying agreements under the Magnuson-Moss Warranty Act, and can be pursued. 

• Software locks are a form of unfair competition and tying.

• No evidence that OEM techs have superior training or skill.

• No evidence that independent technicians entering homes are any more, or less, of a safety risk than a branded tech.

• No evidence of reputational harm (brand image) or increased liability as the result of independent repair. 

• Rejected arguments offered by AEM about potential modification of emissions systems as being “inapposite” as repair is not modification. 

• Rejected the idea that consumers should not be allowed to replace batteries. They affirmed that unsafe designs aren’t an acceptable reason to block repair, and further stated that better labelling and provision of repair instructions would be in the best interest of consumers. 

• No evidence that cyber security risk is associated with repair. 

• No evidence that data security risk differs between branded and independent technicians. 

• The Commission agreed that lack of repair options increases costs to consumers. 

• The Commission did not argue points of IP law (not their specialty) which is a bit of a punt then stated they didn’t see a conflict. 

• The Commission pointed out that repair manuals are unlikely to contain trade secrets. They also point out that proposed legislation specifically exempts trade secrets. 

• The Commission did not buy CTA’s argument that e-waste is declining and agreed that repairing more things is “harmonious” with the objectives of the EPA. 

• The commission did not agree that allowing independent technicians to acquire service materials would damage existing businesses.

Read the press release and the report in full at this link: https://www.ftc.gov/news-events/press-releases/2021/05/ftc-report-congress-examines-anti-competitive-repair-restrictions